ADR Flashcards
(19 cards)
What is ADR?
Alternative Disupte resolution, or ADR is the means of resolving a dispute without having to go to court.
What are the 4 types of ADR?
- Negotiation
- Mediation
- Arbitration
- Conciliation
What is Negotiation?
- Negotiation involves solving the dispute with the parties directly.
- Mostly used in family and neighbour disputes.
- It is completely private, easy and is the cheapest.
What is Mediation?
- This involves having a third party acting as a referee.
- Popular in family cases - Family Law Act 1996
- Seen in online mediation, or mediation centres
- The mediator cannot suggest ways to compromise - the parites must come to their own decision.
- However there is a risk it is becoming compulsory - Dunnett v Railtrack
What did the case of Dunnett v Railtack show in terms of mediation?
In this case the court had not given the Claimant (railtrack) awards of cost in its favour because it did not use ADR in the first place.
What is MIAM ( Mediation information assessment meetings)?
This is a compulsory initial meeting for all divorcing couples,
The meeting costs around £140 and will assess whether your case is suitable for resolution through mediation or whether court would be more appropriate.
What are 6 Strengths of Mediation?
- Good alternative to lengthy and expensive court, and it reduces the number of divorces heard by the courts. Initial assesment only costs £140, and the whole process ranges up to £535 compared with £2,832 for going to court.
- Mediator is independant and the mediator is agreed/chosen by both parties.
- Provides people with a quicker, cheaper and more harmonious way of dealing with disputes. With the scrapping of legal aid in such cases, it is the governments alternative to save money.
- The new scheme will not apply to those who have been victims of domestic violence, so it therefore protects the victim and prevent hostile meetings between parties.
- All discussions are confidential and held in private, usually on neutral ground.
- The agreement is legally binding and can be enforced by the court and there is evidence to suggest that there are certain matters which are more suitably resolved via mediation.
What are 6 limitations of mediation?
- It is not compulsory to commit to the process after the initial assessment so people could end up spending more money by taking it to court anyways.
- Successful mediation takes approximately 3-5 days to resolve where as court could be over in 1 day. It can take place as often as the parties like and are willing, so it can be drawn out for longer.
- Although a lot of family mediators tend to be lawyers, this is not a requirement, so there will be no legal expertise if a legal point arises.
- Many people take legal advice alongside mediation, so they end up saving very little.
- Some couples are worried about being in the same room as their ex partner and this can often cause undue stress and anxiety.
- if no agreement is reached , then the parites have to start again because neither partner is allowed to use the content of the session as evidence in legal proceedings.
What civil procedure rule links with ADR?
What is conciliation?
- Involves a 3rd party taking a more active role, suggesting ways to come to a settlement.
- Common in industrial and commercial disputes.
- Used to prevent things rather than cure.
Who is the biggest conciliatory body?
ACAS
What is arbitration?
- Governed by the Arbitration Act 1996.
- Common in commercial contracts and sporting disputes.
- Award is legally binding on the parties.
- It is a flexibile procedure (when where)
- Can choose a specialist in the field or legal professional as an arbitrator.
- Must be carried out in a judicial manner.
- SEEN IN SCOTT V AVERY
what section of the Arbitrators act 1996 states that the parties are free to agree on the number of arbitrators?
S.15
Who is responsible for providing trained arbitrators in major disputes?
The institute of arbitrators
What are the 2 stages of Arbitration?
Paper hearing
Oral hearing
Arbitration
What happens in the oral hearing?
- This is where the 2 sides meet and put all the points they wish to raise into writing and submit this along with any relevant documents to the arbitrator.
- He will then read the documents and make his decision.
Arbitration
What happens in the oral hearing?
- Once the arbitrator has read all the documents, both parties attend a hearing at which they make oral submissions to the arbitrator to support their case.
- The decision made by the arbitrator is called an award, and is binding on both parties.
- It can be enforced through court and is usually final but can be challenged on the grounds of seriour irregularity in proceedings.
What are 5 key strengths of arbitration?
- the parties can choose their own arbitrator, and can therefore decide whether the matter is best dealt with by a technical expert, lawyer or a professional arbitrator.
- It is private and flexible, the time,place can be arranged to suit both parties.
- Arbitration is cheaper and relatively faster than court.
- The award is final and can be enforced through the courts.
- Any questions of quality can be decided by an expert in a particular field, saving the expense of calling in a expert witness.
What are 5 key limitations of Arbitration?
- any unexpected legal point may arise in the case, which is not suitable for decision by a non-lawyer arbitrator.
- It is expensive if the parties opt for a formal hearing, with witnesses giving evidence and lawyers representing both sides.
- The delays for commercial and international arbitration may be nearly as great as those in the courts if a professional arbitrator and lawyer is used.
- Rights of appeal are limited.
- Fees for a professional arbitrator are expensive.
